[Cite as State v. Edwards , 2022

- Ohio

- 3534.]

COURT OF APPEALS

LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

:

: Hon. Earle E. Wise, Jr., P.J.

Plaintiff

- Appellee : Hon. Patricia A. Delaney, J.

: Hon. Craig R. Baldwin, J.

- vs

- :

: Case No. 21CA0083

:

MARK EDWARDS :

:

:

Defendant

- Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of

Common Pleas, Case No. 21CR29

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: September 30, 2022

For Plaintiff

- Appellee: For Defendant

- Appellant:

WILLIAM C. HAYES WILLIAM T. CRAMER

LICKING CO. PROSECUTOR 470 Olde Worthington Road, Suite 200

CLIFFORD J. MURPHY Westerville, OH 43082

20 North Second St., 4th Floor

Newark, OH 43055Licking County, Case No. 21CA0083 2

Delaney, J.

{¶1} Appellant Mark Edwards appeals from the October 14, 2021 Judgment

Entry of the Licking County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following evidence is adduced from the record of appellant’s jury trial.

{¶3} This case arose on September 9, 2020, around 1:30 p.m., when Sgt. Kaitlin

Fuller of the Ohio State Highway Patrol was monitoring traffic and observed a 1995 GMC

Jimmy operating with a loud muffler. Fuller also observed the Jimmy touch the dotted

white line, and the yellow line, within its lane of travel. The driver was not wearing a seat

belt.

{¶4} Fuller initiated a traffic stop of the vehicle and appellant, the driver,

immediately pulled over. Appellant was unable to open the driver’s

- side window because

it was broken, so he opened the door. Fuller observed a strong odor of gasoline.

Appellant agreed with Fuller that “the muffler was about to fall off” the vehicle, which

belonged to appellant’s girlfriend.

{¶5} During the ensuing conversation, appellant said he didn’t know his Social

Security number, and gave Fuller the wrong birthdate “due to Alzheimers.” Ultimately

Fuller discovered appellant’s license had several suspensions against it, including

noncompliance; she also discovered appellant had 11 prior O.V.I. convictions, including

five in the last twenty years. Upon Fuller’s second approach to the vehicle, she noticed

appellant lit a cigarette, and she noticed a “slight” odor of an alcoholic beverage. When

she asked appellant if he had anything to drink, at first, he denied it, but later said heLicking County, Case No. 21CA0083 3

drank two bottled Bud Lights around 10:00 a.m. Also during their conversation, appellant

blurted out spontaneously, “I’m not drunk.”

{¶6} Fuller decided to administer standardized field

- sobriety tests which were

not successful. When she attempted to administer the horizontal gaze nystagmus test,

appellant would not focus on the stimulus, to the extent that Fuller concluded he was

evading the test. She moved on to the walk

- and

- turn test, but appellant was unable to

stand in position and started the test without waiting for instructions. He was unsteady

on his feet and his legs were shaking, but he said it was from nervousness. Fuller also

administered two non

- standardized field sobriety tests, but appellant was unable to

complete both so the results were not helpful. Appellant said he had a variety of medical

conditions that affected his memory and balance, among other things.

{¶7} Fuller arrested appellant based upon the totality of the circumstances and

her conclusion that he was under the influence. A urine test was administered, but the

result was suppressed and not entered at trial.

{¶8} Dr. Michael Martin was the sole defense witness. He is a family practitioner

who has treated appellant for 10 to 15 years; appellant visits approximately every three

months because he has numerous health issues. He has had at least one stroke and

has a history of coronary disease, emphysema, and a seizure disorder. He is on a variety

of medications and should not drink at all. Dr. Martin testified about case notes indicating

appellant had a visit in May 2021, eight months after the traffic stop and O.V.I. arrest. At

that time, appellant told Martin he “got drunk” one day in September, failed field sobriety

tests during a traffic stop the next day, but hasn’t had a drink since. Martin was careful

to say that he didn’t know whether appellant was under the influence on the day inLicking County, Case No. 21CA0083 4

question and could only testify generally to appellant’s overall health. On cross

examination, Martin acknowledged appellant’s health history includes alcohol

dependence, another reason why he should not drink at all.

{¶9} Appellant was charged by indictment with one count of OVI pursuant to R.C.

4511.19(A)(1)(a)(G)(1)(e)(i) and one count of OVI pursuant to R.C.

4511.19(A)(1)(e)(G)(1)(e)(i), both felonies of the third degree. The indictment also

contained a multiple

- OVI specification pursuant to R.C. 2941.1415(A). Appellant entered

pleas of not guilty and filed a motion to suppress evidence of his stop, arrest, and urine

screen. Appellee responded to appellant’s motion to suppress with a memorandum in

opposition.

{¶10} The matter was scheduled for a suppression hearing on April 15, 2021.

Appellee filed a post

- hearing brief on the issue of transportation of the urine specimen.

On April 28, 2021, the trial court filed a judgment entry overruling appellant’s motion to

suppress in part and granting it in part. Appellant’s urine test result was suppressed due

to handling of the sample.

{¶11} On June 10, 2021, appellee filed an amended indictment charging appellant

with a single count of OVI pursuant to R.C. 4511.19(A)(1)(a)(G)(1)(e)(i) and a multiple

OVI specification pursuant to R.C. 2941.1415(A). The offense is a felony of the third

degree.

{¶12} The matter proceeded to trial by jury on October 13, 2021 and appellant

was found guilty as charged. The trial court sentenced appellant to a total aggregate

prison term of three years.

{¶13} Appellant now appeals from the judgment entry of conviction and sentence.Licking County, Case No. 21CA0083 5

{¶14} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶15} “I. THE WEIGHT OF THE EVIDENCE DID NOT SUPPORT THE

CONVICTION FOR OPERATING A VEHICLE WHILE UNDER THE INFLUENCE OF

ALCOHOL OR DRUGS.”

{¶16} “II. APPELLANT’S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL UNDER

THE FEDERAL AND STATE CONSTITUTIONS WERE VIOLATED BY

PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT.”

{¶17} “III. APPELLANT’S RIGHTS TO THE EFFECTIVE ASSISTANCE OF

COUNSEL UNDER THE FEDERAL AND STATE CONSTITUTIONS WERE VIOLATED

BY DEFENSE COUNSEL’S FAILURE TO OBJECT TO PROSECUTORIAL

MISCONDUCT DURING CLOSING ARGUMENTS.”

ANALYSIS

I.

{¶18} In his first assignment of error, appellant argues his O.V.I. conviction is

against the manifest weight of the evidence. We disagree.

{¶19} R.C. 4511.19(A)(1)(a), which states in pertinent part: No person shall

operate any vehicle* * * within this state, if, at the time of the operation, * * * [t]he person

is under the influence of alcohol, a drug of abuse, or a combination of them.” The jury

also found that appellant had five O.V.I. convictions within the last five years pursuant to

the specification in the indictment pursuant to R.C. 2941.1415(A). Appellant does not

contest the jury’s finding as to his prior convictions.Licking County, Case No. 21CA0083 6

{¶20} Appellant points to our prior decision in State v. Carozza

, 5th Dist. No. 14

-

COA

- 028, 2015

- Ohio

- 1783, 33 N.E.3d 556, at ¶ 22, in which we observed:

{¶21} The phrase “under the influence of intoxicating liquor” has been defined as

“[t]he condition in which a person finds himself after having consumed some intoxicating

beverage in such quantity that its effect on him adversely affects his actions, reactions,

conduct, movement or mental processes or impairs his reactions to an appreciable

degree, thereby lessening his ability to operate a motor vehicle.” Toledo v. Starks

, [25

Ohio App.2d 162, 166, 267 N.E.2d 824 (1971)]. See, also, State v. Steele

, [95 Ohio App.

107, 111, 117 N.E.2d 617 (1952)] (“[B]eing ‘under the influence of alcohol or intoxicating

liquor’ means that the accused must have consumed some intoxicating beverage,

whether mild or potent, and in such quantity, whether small or great, that the effect thereof

on him was to adversely affect his actions, reactions, conduct, movements or mental

processes, or to impair his reactions, under the circumstances then existing so as to

deprive him of that clearness of the intellect and control of himself which he would

otherwise possess”). See, State v. Henderson, 5th Dist. Stark No. 2004

– CA

– 00215,

2005

- Ohio

- 1644, ¶ 32. [Citing State v. Barrett, 5th Dist. Licking No. 00 CA 47, 2001 WL

194782 (Feb. 26, 2001)].

{¶22} In the instant case, appellant argues, the weight of the evidence does not

support the jury’s finding that appellant was appreciably impaired. In determining whether

a conviction is against the manifest weight of the evidence, the court of appeals functions

as the “thirteenth juror,” and after “reviewing the entire record, weighs the evidence and

all reasonable inferences, considers the credibility of witnesses and determines whether

in resolving conflicts in the evidence, the jury clearly lost its way and created such aLicking County, Case No. 21CA0083 7

manifest miscarriage of justice that the conviction must be overturned and a new trial

ordered.” State v. Thompkins

, supra, 78 Ohio St.3d at 387. Reversing a conviction as

being against the manifest weight of the evidence and ordering a new trial should be

reserved for only the “exceptional case in which the evidence weighs heavily against the

conviction.” Id.

{¶23} Appellant concedes, however, that his vehicle touched the center line in the

cruiser camera video; the trooper noted a “slight” odor of an alcoholic beverage and

drawn

- out, slow speech; appellant admitted consuming only two beers over three hours

before the stop; and appellant’s performance on the field sobriety tests, while poor, could

be explained by his poor physical health. Appellant fails to note that each of these factors

could be explained by impairment by alcohol or other drugs. Appellant completely ignores

other evidence in the record, however, including appellant’s obfuscations about his

license status; his lack of cooperation on the field sobriety tests including the HGN; his

volunteered statement that “I’m not drunk;” his inability to complete the walk

- and

- turn test

because of shaking legs; his statement of the wrong date of birth because of “memory

problems;” and his claim that he doesn’t know his social security number. Looking at the

totality of the circumstances, the jury could reasonably find appellant was impaired at the

time of the traffic stop.

{¶24} At trial, appellant argued that his instability and difficulty with field sobriety

tests was due to a variety of medical conditions, including strokes. Appellant offered a

strange piece of evidence to corroborate his medical

- condition defense: a statement from

his family doctor, dated eight months after the traffic stop, in which appellant reported that

he had been drunk on the day before the traffic stop and the next day, he failed field

-Licking County, Case No. 21CA0083 8

sobriety tests. Appellant’s family doctor was the only defense witness; he testified to a

variety of debilitating medical conditions suffered by appellant, and a number of

medications which adversely affect his ability to drive. The doctor was careful to say he

could not comment on appellant’s balance and coordination, but if appellant’s balance

was “tested,” he could fall short based upon his history of strokes.

{¶25} Upon cross

- examination, however, the doctor agreed that one of appellant’s

medical conditions is alcohol dependence, and that appellant should not drink at all for

many reasons. Alcohol consumption would affect appellant’s ability to drive, the doctor

noted; alcohol consumption would magnify every condition appellant has. The doctor’s

testimony highlights the significance of appellant’s claim to the doctor that he was

purportedly drunk the day before the stop, and his admission to the trooper that he had

two beers on the morning of the stop.

{¶26} The jury had the opportunity to listen to the witnesses and view the video of

the stop, and to weigh the competing explanations for appellant’s evident difficulties in his

interactions with Sgt. Fuller: was he under the influence of alcohol or another drug, or

simply in poor physical condition? The jury could reasonably conclude the former

explanation was more likely. We note the weight to be given to the evidence and the

credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d

182, 189, 552 N.E.2d 180 (1990). The trier of fact “has the best opportunity to view the

demeanor, attitude, and credibility of each witness, something that does not translate well

on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶27} Upon review, we decline to second

- guess the credibility determinations of

the jury in this matter. This is not an “ ‘exceptional case in which the evidence weighsLicking County, Case No. 21CA0083 9

heavily against the conviction.’ ” Thompkins

, 78 Ohio St.3d at 387, quoting Martin

, 20

Ohio App.3d at 175.

{¶28} The trial court neither lost its way nor created a miscarriage of justice in

convicting appellant of O.V.I, and appellee presented evidence of his guilt beyond a

reasonable doubt.

{¶29} Appellant's first assignment of error is overruled.

II.

{¶30} In his second assignment of error, appellant argues his constitutional rights

were violated by prosecutorial misconduct during closing argument. We disagree.

{¶31} In his second assignment of error, appellant points to the following

statements by the prosecutor during closing argument, asserting the statements

constitute prosecutorial misconduct:

* * * *. Proof beyond a reasonable doubt is proof of such

character that an ordinary person would be willing to rely upon it in

the most important of their own affairs. The most important of your

own affairs is everyone sitting on this panel has operated a motor

vehicle on a roadway, and you and I do the same thing every day.

We take into consideration that other people will be following the

rules and doing what they’re supposed to be doing and have the

vehicle under control. And part of what you’re being asked [is] the

Defendant in your opinion from the facts presented that type of

person, or is he not. And why it’s important is because forgetfulness

is not an issue according to the doctor. * * * *.Licking County, Case No. 21CA0083 10

T. 184

- 185.

{¶32} Appellant argues this statement asks the jury to make an explicit character

judgment about appellant, as to whether he is the type of person who will “follow the rules

of the road.” In the context of the entire argument, we do not find this comment improper.

We find that it doesn’t ask the jury to judge appellant’s character so much as the entire

presentation of appellant that they observed on the video: from the apparent physical

issues to the alleged forgetfulness about birthdate, SSN, and license status, to whether

or not he drank that day. The prosecutor essentially asked the jury whether this is a

person who should be sharing a road with them.

{¶33} We do not discern, and appellant does not reveal, on what basis defense

trial counsel should have objected to this statement. Nevertheless, for the purpose of our

review, defense trial counsel failed to object and bring the alleged error to the attention of

the trial court, therefore appellant has waived all but plain error review. Under the plain

error rule, “[p]lain errors or defects affecting substantial rights may be noticed although

they were not brought to the attention of the court.” Crim.R. 52(B). The rule places the

following limitations on a reviewing court's determination to correct an error despite the

absence of timely objections at trial: (1) “there must be an error, i.e. a deviation from a

legal rule,” (2) “the error must be plain,” that is an error that constitutes “an ‘obvious’ defect

in the trial proceedings,” and (3) the error must have affected “substantial rights” such

that “the trial court's error must have affected the outcome of the trial.” State v. Wood

, 5th

Dist. Knox No. 20CA000010, 2020

- Ohio

- 4251, 2020 WL 5092841, ¶ 18 citing State v.

Dunn

, 5th Dist. Stark No. 2008

- CA

- 00137, 2009

- Ohio

- 1688, 2009 WL 943968, ¶ 89, citingLicking County, Case No. 21CA0083 11

State v. Morales

, 10th Dist. Franklin Nos. 03

- AP

- 318, 2004

- Ohio

- 3391, 2004 WL

1446117, ¶ 19.

{¶34} The test for prosecutorial misconduct is whether the prosecutor's comments

and remarks were improper and if so, whether those comments and remarks prejudicially

affected the substantial rights of the accused. Sunbury v. Sullivan

, 5th Dist. Delaware No.

11CAC030025, 2012

- Ohio

- 3699, 2012 WL 3525617, ¶ 30 citing State v. Lott

, 51 Ohio

St.3d 160, 555 N.E.2d 293 (1990). In reviewing allegations of prosecutorial misconduct,

it is our duty to consider the complained of conduct in the context of the entire trial. Darden

v. Wainwright

, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). A trial is not unfair,

if, in the context of the entire trial, it appears clear beyond a reasonable doubt the jury

would have found the defendant guilty even without the improper comments. State v.

Treesh

, 90 Ohio St.3d 460, 464, 2001

- Ohio

- 4, 739 N.E.2d 749. Furthermore, both the

prosecution and the defense have wide latitude during opening and closing arguments.

{¶35} However, a prosecutor may not express his personal belief or opinion as to

the credibility of a witness, the guilt of an accused or allude to matters that are not

supported by admissible evidence. State v. Smith

, 14 Ohio St.3d 13, 14, 470 N.E.2d 883

(1984). The wide latitude given the prosecution during closing arguments “does not

‘encompass inviting the jury to reach its decision on matters outside the evidence

adduced at trial.’ ” State v. Hart

, 8th Dist. No. 79564, 2002

- Ohio

- 1084, at 3, citing State

v. Freeman

, 138 Ohio App.3d 408, 419, 741 N.E.2d 566 (1st Dist. 2000).

{¶36} We find no plain error in admission of the cited comments, in the context of

the entire closing argument, and it is evident beyond a reasonable doubt the jury would

have found appellant guilty even without the comments.Licking County, Case No. 21CA0083 12

{¶37} Appellant’s second assignment of error is overruled.

III.

{¶38} In appellant’s third assignment of error, he contends he did not receive the

effective assistance of counsel because counsel did not object to the prosecutor’s

statement in closing argument cited supra.

{¶39} A claim for ineffective assistance of counsel requires a two

- prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Strickland v. Washington

, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674(1984); State v. Bradley

, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

{¶40} To warrant a reversal, the appellant must additionally show he was

prejudiced by counsel's ineffectiveness. “Prejudice from defective representation

sufficient to justify reversal of a conviction exists only where the result of the trial was

unreliable or the proceeding fundamentally unfair because of the performance of trial

counsel. Lockhart v. Fretwell

, 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

{¶41} The United States Supreme Court and the Ohio Supreme Court have held

a reviewing court “* * * need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697.

{¶42} In light of our conclusion that the prosecutor did not commit misconduct and

there was no plain error, we find defense trial counsel did not err in failing to object during

closing argument. Appellant was not prejudiced by defense counsel's representation ofLicking County, Case No. 21CA0083 13

him. The result of the trial was not unreliable nor were the proceedings fundamentally

unfair because of the performance of defense counsel.

{¶43} Appellant’s third assignment of error is overruled.

CONCLUSION

{¶44} Appellant’s three assignments of error are overruled and the judgment of

the Licking County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, Earle, P.J. and

Baldwin, J., concur.